Diggins v. Coe et al

Filing 62

ORDER DENYING 35 Motion for Summary Judgment on Issue of Exhaustion of Administrative Remedies filed by Defendant John Coe and 39 Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Travis Ochs and Michael Gilreath. Signed by Judge Nancy J. Rosenstengel on 2/7/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAQUILLE RONZELL DIGGINS,
Plaintiff,
vs.
JOHN COE, C/O TRAVIS OCHS, C/O
MICHAEL GILREATH, JERRY
TANNER, WARDEN STEPHEN
DUNCAN, JOSEPH YURKOVICH,
WEXFORD HEALTH SOURCES, INC.,
JOHN DOE 1, JOHN DOE 2, and
WEXFORD DOE 1 THROUGH
WEXFORD DOE 20,
Defendants.

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Case No. 3:16-CV-242-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court are the Motions for Summary Judgment on the
Issue of Exhaustion of Administrative Remedies filed by Defendant John Coe (Doc. 35)
and Defendants Michael Gilreath and Travis Ochs (Doc. 39).
INTRODUCTION
Plaintiff Shaquille Ronzell Diggins filed this lawsuit on March 7, 2016 (Doc. 1) and
is now proceeding on his First Amended Complaint, claiming that on November 23,
2015, he was subjected to a strip search and an intrusive and painful anal cavity search
while imprisoned at Lawrence Correctional Center. Diggins alleges that when he
complained about the search, prison officials placed him in segregation for eight days.
Diggins is proceeding on three counts pursuant to 42 U.S.C. § 1983 for cruel and

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unusual punishment (Count 1), unlawful search (Count 2), and retaliation (Count 3).
Diggins also brings state law claims of intentional infliction of emotional distress (Count
4), assault and/or battery (Count 5), and negligence (Count 6). Prior to the filing of the
First Amended Complaint, Defendants Coe, Gilreath, and Ochs (who were the only
original Defendants) filed the instant pending motions. Because the First Amended
Complaint does not change the substance of Diggins’s claims, and Defendants have not
sought to supplement their motions, the motions are ripe for a ruling. An evidentiary
hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir, 2008), is not required because
there are no material facts in dispute.
BACKGROUND
The undisputed evidence reveals that on November 23, 2015, Diggins submitted
an emergency grievance stating that he was forcibly subjected to a cavity search
performed by Dr. Coe while Correctional Officers Gilreath and Oche held him down
(Doc. 40-1, pp. 1-2). When Diggins complained about the search and asked to see the
Warden, he was taken to segregation (Id.).
On December 2, 2015, Diggins sent a letter to the Administrative Review Board
(“ARB”) indicating that he submitted two emergency grievances about the November
23, 2015 incident but that he received no responses (Doc. 40-2). The ARB responded on
December 15, 2015, asking Diggins to supplement his letter with a copy of the response
from the Warden to his grievances (Doc. 40-3). It is undisputed that Diggins never
received a response to his emergency grievance from the Warden.
LEGAL STANDARD
Summary judgment is proper only if the moving party can demonstrate “that
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there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir.
2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833,
836 (7th Cir. 2005).
The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under Section
1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to
suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr.,182
F.3d 532, 534-535 (7th Cir. 1999) (stating that §1997e(a) of the PLRA “makes exhaustion a
precondition to bringing suit” under § 1983). Failure to exhaust administrative remedies
is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See
Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006).
The Supreme Court has interpreted the PLRA to require “proper exhaustion”
prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means “using all steps
that the agency holds out, and doing so properly (so that the agency addresses the issues
on the merits).” Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed
with the Seventh Circuit’s interpretation of the statute as stated in Pozo, which required
an inmate to “file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit

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instructed district courts to conduct a hearing to determine whether a plaintiff has
exhausted his remedies. Id. 544 F.3d at 742. If a plaintiff has exhausted his remedies, the
case will proceed on the merits. If, however, a plaintiff has not exhausted, the Court may
either allow the plaintiff to exhaust or terminate the matter.
Under the procedures set forth in the Illinois Administrative Code, an inmate
must first attempt to resolve a complaint informally with his Counselor. ILL. ADMIN.
CODE TIT. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a
grievance within 60 days after the discovery of the incident, occurrence, or problem that
gives rise to the grievance. Id. § 504.810(b). The grievance officer is required to advise the
Chief Administrative Officer (“CAO” – usually the Warden) at the facility in writing of
the findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the
decision on the grievance within two months of it having been filed. Id. § 504.830(d). An
inmate may appeal the decision of the CAO in writing within 30 days to the
Administrative Review Board for a final decision. Id., § 504.850(a). See also Dole v.
Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006).
An inmate may also request that a grievance be handled as an emergency by
forwarding it directly to the CAO. If the CAO determines that there exists a substantial
risk of imminent personal injury or other serious or irreparable harm, the grievance shall
be handled on an emergency basis, which allows for expedited processing of the
grievance by responding directly to the offender indicating what action shall be taken.
Id. § 504.840. If, after receiving a response from the CAO, an offender feels the grievance
has not been resolved, he may appeal in writing to the ARB within 30 days after the date

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of the CAO’s decision. Id. § 504.850(a).
An inmate is required to exhaust only those administrative remedies available to
him. See 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies
become “unavailable” when prison officials fail to respond to inmate grievances. Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th
Cir. 2005). The availability of a remedy does not depend on the rules and regulations as
they appear on paper, but on “whether the paper process was in reality open for the
prisoner to pursue.” Wilder v. Sutton, 310 F. App’x 10, 13 (7th Cir. 2009). If further
remedies are unavailable to the prisoner, he is deemed to have exhausted. Id.
DISCUSSION
Defendants’ sole argument is that Diggins filed suit prior to a final decision on the
merits of his grievance by the ARB. They argue that by failing to provide the material
requested by the ARB—most notably the institutional response—Diggins filed suit too
early.
Defendants’ argument lacks merit because there is no evidence that the Warden at
Lawrence ever responded to Diggins’s grievance. See Lewis, 300 F.3d at 833 (holding that
administrative remedies become “unavailable” when prison officials fail to respond to
inmate grievances). Diggins submitted an emergency grievance on November 23, 2015,
and wrote to the ARB on December 2, 2015. He did not file suit until March 7,
2016—more than 90 days after he submitted his emergency grievance. Inmates are not
required to wait indefinitely for a response to an emergency grievance. See id. (holding
the PLRA does not allow prison officials to “exploit the exhaustion requirement through

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indefinite delay in responding to grievances”). Considering that the emergency
grievance process is designed to remedy imminent dangers, Diggins was justified in
expecting a response in an expedited manner. Even grievances submitted under the
normal grievance procedure must be responded to within two months of being filed. ILL.
ADMIN. CODE TIT. 20, § 504.830(d). When 90 days passed by without a response to his
emergency grievance, Diggins was justified in filing suit.
By failing to respond the grievance in the first instance, the process was rendered
unavailable, and Diggins is deemed to have exhausted. That Diggins may have written
to the ARB prior to receiving a response from the Warden is wholly irrelevant. He was
not required to appeal to the ARB at all if he had not received a response from the
Warden in the first place.
CONCLUSION
For these reasons, the Motions for Summary Judgment on the Issue of Exhaustion
of Administrative Remedies filed by Defendant John Coe (Doc. 35) and Defendants
Michael Gilreath and Travis Ochs (Doc. 39) are DENIED.
IT IS SO ORDERED.
DATED: February 7, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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